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Monday, November 16, 2015

Despite legal setback, Malbrook residents confident they will win

Deer enjoy the meadow where an infill housing development is planned near Malbrook.

By Darren Gruendel

Sex, lies, and videotape – OK, no sex, but there are plenty of lies and there’s a video of horrendous flooding in the continuing drama about Malbrook subdivision’s fight to protect its neighborhood covenants.

Malbrook residents were shocked on Nov 3 when a Fairfax County Circuit Court judge denied their initial request for a permanent injunction preventing Evergreene Homes from building a public road across a covenant-protected property.

Brooks Place

Evergreene is planning to build eight single-family houses on a plot of land previously owned by the Woo family at the end of Brooks Place adjacent to Malbrook. The plans call for widening Brooks Place to access the new infill development, but that would violate the covenants of the Malbrook subdivision.

I suppose we’re not surprised that six lawyers – that’s right, six – representing Evergreene Homes, Cardinal Bank, the Woo family, and Fairfax County found a way to obscure some simple facts and managed to distract the judge from the somewhat complicated case law. But we are nonetheless astounded by the decision and expect to win on appeal.

First, however, the Malbrook neighborhood expects the county to perform its duties. We knew all along that the project violates the covenants. What has become clear is just how underhanded the developers and consultants working for the Woos have been in going around ordinances and deceiving the county.

While the initial decision is inconvenient, the system works. Once you see the paper trail of who said what to whom, it all becomes crystal clear – and gets very ugly.

Despite the best efforts of staffers in the county’s Urban Forestry department, the engineers for the Woos, Land Design Consultants of Woodbridge, had repeatedly submitted plans in violation of requests to follow ordinances. After substantive badgering by dedicated Urban Forestry personnel, Land Design finally submitted a “corrected” version. But that plan shows trees and the proposed road in the wrong place, making it appear that the trees would not be harmed by the construction.

The plan was eventually approved by the county, but only after the resignation of the urban forestry expert managing the project. And, it should be noted, trees that will be destroyed remain undocumented in violation of ordinances.

For now the trees the county has agreed to protect remain. As such, construction cannot take place without violating county ordinances.

Adding insult to injury, it was Land Design Consultants that had submitted the original plat dedicating the piece of property over which the road and sidewalks would go. And again, they did it incorrectly and deceptively using bad coordinates and failing to recognize the covenant restrictions on the property. Despite the ruse, the neighbors complained, and the county responded clearly in a letter to a Malbrook resident stating, “the subject plat has been removed by the applicant.”

Perhaps the most disturbing incident during the Nov. 3 hearing was the argument by John Rinaldi, the attorney hired by Fairfax County, that such letters from the county were not to be considered evidence in this case.

Judge Grace Burke Carroll overruled this bizarre claim on the part of our public officials, but Rinaldi continued to raise objections incessantly, disrupting the proceedings.

So if the judge ruled against our request for a permanent injunction to stop this infill development, why are we still so confident?

The law is clear, despite the sideshow antics. Perhaps the judge was influenced by the false claims that the four-acre property “has always had access through Brooks Place.” The developer deceptively claimed Brooks Place is a public road and argued that making it “just a little a wider” isn't a big deal.

Fairfax County records clearly show that the property originally had direct access to Sleepy Hollow Road, a public state road, until the previous owner decided to sell off the portion with Sleepy Hollow access and instead accept access through the privately maintained Brooks Place and covenant-regulated Malbrook subdivision.

To be fair, a portion of Brooks Place is a publicly maintained state road, just not the part at issue here. The extension of Brooks Place adjacent to the property in question is not in any public road system.

In fact, in 2002 the Woos asked the county to add that part into the public road system, but the county refused, confirming its status as last published in a 1979 letter from the county to Malbrook residents: “This road will be considered a private road with no county maintenance unless it has been accepted by the Board of Supervisors into the county’s Road Maintenance and Improvement Program.” That has never happened.

The county’s own engineers had forced Land Design Consultants to highlight this fact on the original subdivision plans for the Woo property, as they had conveniently left it off.

For Fairfax County to now take part in misrepresenting these facts in a court of law goes way beyond supporting development. One could easily argue that what Land Design Consultants have done sounds like fraud.

More important, even though these facts and their implications are clear, they are completely irrelevant to the case. One hundred and forty years of Virginia state law show that covenants are enforceable and failing to enforce them is a harm.

As one Malbrook resident said, “Covenants run with the land; everything else is noise.” In this case, I guess six lawyers just made the noise more deafening.

I don't have a horse in this race, but this seems so much more like an editorial than a news article that I hope the blog would find a way to indicate this. Even though there is a byline, that doesn't seem sufficient to distinguish this letter. I appreciate the work that the blog does daily and hope that it can maintain as balanced a perspective as possible in the tradition of much excellent journalism.

This is a story about a developer and the county railroading local residents. To give equal time to the opinion of the oppressor is to help perpetuate their oppression.

"Some people will say that words like scum and rotten are wrong for Objective Journalism -- which is true, but they miss the point. It was the built-in blind spots of the 'Objective' rules and dogma that allowed Nixon to slither into the White House in the first place." - Hunter S. Thompson

Unfortunately, the struggle recounted here is all too common in Mason District. And, where is Supervisor Gross in assisting her constituents? She refused to meet with them because they didn't have a homeowner association, if I recall. But, they are residents and have covenants and she should be helping them navigate this difficult situation.

I'll bet Evergreen Homes and the Woo family donated to her sleazy re-election campaign.

Enforcement of neighborhood covenants are the responsibility of the the neighborhood or homeowners association, not the government. I don't want my tax dollars used to enforce the thousands of neighborhood covenants around the county, anymore than you should want your tax dollars used to enforce the covenants in my neighborhood.

Very few tax dollars being spent here - the County knew this was coming and only approved the bogus plans AFTER ensuring that their legal costs would be covered under the title insurance of the property owners. Further, we're not asking them to enforce anything rather just to adhere to law, ordinance and code.

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